ATF's final rule definition of being “engaged in business” as a firearms dealer runs 466 pages in responses to comments and the final rule itself. Of the 258,000 comments, more than 252,000, or 98% in favor of the proposed rule, were form letters containing the same text found online and recommended by (anti-gun) groups. Only 5,140 were not form letters. Of the 99,000 comments opposing the rule, 80,000 (81%) were form letters. This means that 18,810 are not form letters. Therefore, the number of opponents who submitted comments with actual content was more than three times the number of supporters.
The final rule is substantially identical to the proposed rule. View my previous posts “'He did it again!' Merrick Garland Proposes Increasingly Intrusive ATF Regulations.” Several of the points I (and others) raised in comments opposing the proposed rule were taken seriously enough by the ATF to be rejected for a long time.
A new item catches your eye. The Gun Control Act (GCA) excludes the occasional sale and purchase of a “private collection” of firearms from the term “engaged in the business” of handling firearms. The proposed rule defined “private collections” to include antiques, artifacts and firearms used in recreational activities. In response to numerous comments criticizing the proposal for not including firearms used in self-defense, the final rule explicitly states: [personal collection] will be ~ no “Includes firearms accumulated primarily for personal protection.” However, nothing in the statute precludes such firearms from becoming part of a private collection.
By purporting to exclude the occasional purchase and sale of firearms acquired for self-defense from the “personal collection” category, this rule makes it more likely that such individuals will be subject to licensing requirements. However, this category was established by the Firearm Owners Protection Act of 1986. The law declared that additional legislation was needed to amend existing gun laws and enforcement policies to ensure citizens' right to keep and bear arms under the Second Amendment to the U.S. Constitution. ” And the Supreme Court said: DC vs. Heller The Second Amendment states that “weapons then in common use” are protected for lawful purposes, such as self-defense.
In defining “engaged in business” as a dealer, the rules state that “there is no minimum number of firearms purchased or sold that would trigger licensing requirements” and “notwithstanding the offer of a single firearm transaction or engagement in the transaction.” , when combined with other evidence… You may need a license.” That sounds very vague, considering that engaging in the business of dealing firearms without a license is a serious felony.
The rule is intended to provide, in civil and administrative proceedings, a presumption that a person is engaged in business if he or she “repeatedly resells or offers for resale a firearm” within 30 days of purchase, or within one year of purchase if the firearm is “new.” “Like new in the original packaging” or “same make and model or a variation thereof”. This is an activity that collectors commonly engage in. Sometimes they collect more collectible collectibles and collect variations of the same make and model to create a collection. Move up the ladder quickly. Nothing in the GCA imposes such a time limit.
The rule also provides that in civil and administrative proceedings, if an individual “posts a firearm for the purpose of resale, including resale over the Internet,” or “repeatedly rents a table or space for firearms,” if the individual “primarily intends to make a profit.” asserts that it creates the presumption that “there is.” shows”, and that the estimated inventory “is not exhaustive.” Again, this is an activity in which collectors typically engage, and the statute prohibits occasional sales to enhance private collections with the “principal intent of making a profit.” Excluded from.
Although the rule asserts that the above rebuttable presumption does not apply in criminal cases, it says the opposite by stating that it “may be useful to courts in criminal cases, for example, when instructing juries regarding permissible inferences.” . Jury instructions are based on statute and judicial opinions and not on advocacy by agencies involved in prosecuting alleged violations.
Many comments argued that this rule violates the Second Amendment. While diction is in heller “The validity of the law imposing conditions and qualifications for advertisement Rather than being a 'law' for 'selling arms', the new regulations redefine 'engaging in business' to include many things. Private, non-commercial sales.
ATF's comments contain the following fundamental misunderstanding of Supreme Court precedent: heller Through a two-step process, the Department recognizes: leg The ‘two-stage’ framework was abolished. hellerIt refused to apply the purpose of funding test at a second stage, saying it was ‘one step too many’. “But it was the lower courts that got in the way. hellerno heller, invented a two-step framework. Relying on text and history, heller rejected the means-end inquiry (Judge Bryer argued for this in his dissenting opinion); NY State Rifle & Pistol Ass'n v. leg It strengthened and expanded that denial.
To support expanding licensing requirements, ATF's response seeks to draw on the following historical parallels: leg In the wrong place. In 1794, Congress restricted the export of arms and supplies to strengthen America's armament as war with Britain threatened. The colonies restricted arms trade with Indians to reduce the threat from hostile tribes. Massachusetts has enacted a firearms certification law. Various laws regarding gunpowder were enacted to ensure a safe and reliable supply. Neither of these laws resembles the “how” and “why” of a rule that radically expands licensing requirements.
ATF's comments do not rebut comments that the agency lacks delegated authority to promulgate rules. In enacting the Gun Control Act of 1968, Congress rejected a provision that would have made violation of the regulations a crime. Instead, all GCA offenses are defined as violations of “this chapter,” i.e., Title 44 of Title 18 USC, the Penal Code. The Firearm Owners Protection Act of 1986 reduced the ATF's regulatory authority by changing the original phrase: “Same rules and regulations as gun owners.” [the Secretary] considered reasonably necessary” to “only necessary rules and regulations.” Finally, Congress's delegation to ATF to promulgate explicit, limited regulations negates its authority to adopt broad, general regulations under those rules. It's possible. One expression is the exclusion of another.
The commentary also failed to rebut the commentary citing the following Supreme Court precedent: Thompson/Center Arms v. US It is argued that the criminal and non-criminal application of the law should be interpreted consistently and that in cases of ambiguity, it should be interpreted against the government in accordance with the principle of tolerance.
Finally, on some issues ATF clearly has errors but sticks to them nonetheless. For example, the GCA prohibits an FFL from transferring a firearm in interstate commerce to a non-FFL, but exempts “the return to the person from whom the firearm or a replacement firearm of the same kind and type is received.” 18 USC § 922(a)(2)(A). ATF added the restriction that returns can be made “only for the purpose of repair or customization,” justifying the phrase “which has long been found in regulations.” Never admit your mistakes. This is especially true if it is a mistake that has been going on for a long time.
The commentary accurately states, “The more people licensed under this rule, the more background checks will be conducted on those licensees.” Actually, that's its purpose. Since Congress has rejected universal background checks, the Biden administration has decided to do the same by regulation.
This rule on “carrying on a business” is the third major new regulation proposed by Attorney General Garland, following “frames or receivers” and “pistol braces.” This was preceded by the Trump administration's 'bump-stock' principle. Cargill v. Garland, this is the argument raised in the Supreme Court. We'll look at whether the courts set limits on the executive branch's continued push for regulatory overreach.
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As I posted last week, the Washington Supreme Court director has scheduled a hearing for April 17 on the stay he issued on the state's injunction to ban enforcement of the magazine ban, which Cowlitz County Superior Court found unconstitutional. Washington State vs. Gator's Custom Gun. At the hearing, the director responded to criticism for issuing a stay without time to review the court's 55-page decision and the state's 32-page stay request. He said he received the documents at 4:14 p.m. on April 8 and issued a residence permit at 4:58 p.m. He did not need more time to review his paper because he had done “a lot of research” beforehand and had become an expert on the matter. He “anticipated every argument the Attorney General would make” and had a “boiler plate template” for the stay order.
Most of the “hearings” consisted of the committee members’ thoughts. A 12-gauge shotgun or revolver is sufficient for self-defense. For semi-automatics, 5 to 10 rounds are fine. Judge Benitez's ruling Duncan vs Bonta California's ruling to ban magazines in violation of the Second Amendment was based on experts who were “snake oil” salesmen. When Washington settled, the weapons the pioneers had were “remarkably” different than they are now. Commissioners are expected to make a decision next week on whether to make the stay permanent. Don't hold your breath until it releases.